there was some matter which had been extracted in the same language, or very nearly so, into the defendant's book, this matter comprising 879 lines, or about 24 pages of his book, and 30 pages of Story, which made one-fifteenth part of the defendant's book and one-sixtieth of Story; this matter being found in scattered paragraphs in the first third of the defendant's book: all the other portions of Judge Story's book were abridged without any transcription of his common language, the part so abridged comprising twothirds of the defendant's book. The court, in granting an injunction as to the first 100 pages of the defendant's work, said:

"What is the character of the work complained of? Upon its title-page it does not purport to be an abridgment, but 'An Introduction to Equity Jurisprudence, on the Basis of Story's Commentaries'; and in the preface the author says, 'It is not intended to supply the place of the Commentaries with any class of readers, but to serve simply as an introduction, a companion, and a supplement to their study. The text is substantially an abridgment of that work, &c.'; . . . . but he also says that 'he has felt at liberty to make very considerable alterations and additions.' Alterations of the original work, and additions to the text, are not appropriate to an abridgment. In saying, therefore, that 'the text is substantially an abridgment,' Mr. Holcombe could have meant nothing more than that, in writing his book, he followed the arrangement of the Commentaries, extracting certain parts, condensing others, with 'very considerable alterations and additions' of his own. A supplement to the Commentaries, which, Mr. Holcombe says, in some sense, is the character of his work, may supply defects in the original, but it can in no sense be considered an

abridgment. This remark seems to have been made in reference to the notes added by the author. It may not be essential to exclude extracts entirely from an abridgment, but in making extracts merely there is no condensation of the language of the author, and, consequently, there is no abridgment of it. Much looseness is found in the decisions upon this subject. Some of the judges would seem to consider that where a book is greatly reduced in the size, though made up principally of extracts, it is an abridgment. In a book of reports, such as 'Bacon's Abridgments,' the language of the court is necessarily adopted often to show the principle of the decision. But the same necessity does not exist, and the same license can not be exercised in abridging an elementary work. Nearly one-half of the text, in the first hundred pages of Mr. Holcombe's book, appears to have been extracted from Story. To class these extracts under the head of abridgments,' would seem to be a perversion of terms. Whatever else this part of Mr. Holcombe's book may be called, it is not an abridgment. With greater propriety it may be called a compilation, as the extracts contained in it are taken from various authors. As a compilation, this part of the book must be considered an infringement of the right of the plaintiffs, by the copious extracts made from the Commentaries, and the classification of the subjects copied from them. Looking at the smallness of Mr. Holcombe's book, in comparison of that from which it was principally taken, one might suppose that the former was a short abridgment of the latter. But this comparison of size or number of pages affords no guide to a proper decision. The character of the work must depend upon its matter; and it would seem from the

considerations stated, that the first third part of Mr. Holcombe's book, including one hundred pages, cannot be justly and legally called an abridgment, as it does not possess the essential ingredients of such a work; and that, viewing it as a compilation, it is an infringement of the plaintiff's right, on the ground that the plan of the Commentaries is copied; and also for the reason that the extracts extend beyond the proper limit of such a work. The remaining twothirds of the book may be comprehended under a liberal construction of an abridgment. The matter is greatly condensed by Mr. Holcombe, in his own language, and in a manner highly creditable to him."

The case of Dickens v. Lee,' is interesting as illustrating the extent to which publishers have ventured to take advantage of the privileges of abridgers and abridgments. In that case the defendant published in a number of "Parley's Illuminated Library" (a weekly publication) a portion of a story entitled "A Christmas Ghost Story, re-originated from the original by Charles Dickens, Esq., and analytically condensed expressly for this work," which, with the exception of a few colorable alterations, was in all respects similar to the "Christmas Carol" of Charles Dickens, this was held to be a clear invasion of Mr. Dickens's copyright in that work.

It was contended that the work was neither a colorable imitation nor a piracy of the other, but a fair abridgment, the result of the defendant's mental labor, and falling within the principle of Dodsley v. Kinnersley; and it was urged that-so far from any attempt being made to induce the public to believe they were buying, for one penny, what the eminent author of the

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8 Jur. 183, ante, p. 339.
4 Esp. 169.

Christmas Carol" had written and published for five shillings—the defendant, in his work, had a dedication of his labors to Mr. Dickens himself. "The plaintiff," said the court, "appears to be the author, and to own the copyright of a work of fiction-a novel-the copyright of which has not been contended to be not entitled to protection. The defendant has printed and published a novel, of which, fable, persons, names and characters of persons, the age, time, country, and scene, are exactly the same; the style of language in which the story is told is in many instances identical, in all similar, except when certain alterations, by way of extension or substitution have been made; as to which, whether they improve or do not improve upon the original composition, it is not necessary for me to express my opinion. Now this has been said to be an abridgment, and as an abridgment to be protected. I am not aware that one man has the right to abridge the works of another. On the other hand, I do not mean to say that there may not be an abridgment which may be lawful, which may be protected; but to say that one man has the right to abridge and so publish in an abridged form the work of another, without more, is going much beyond my notion of what the law of this country is. The expressions of Lord Eldon, applied to a subject of copyright very different from the present, but still applied to the subject of copyright, are these: The question upon the whole is, whether this is a legitimate use of the plaintiff's publication in the fair exercise of a mental operation deserving the character of an original work.' And I agree that there may be such an use of another man's publication as, involving the exercise of a new mental operation, may fairly and legitimately involve it. It does not appear 1 17 Ves. 426.

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to me that there is anything in the present case which brings that which the defendant had done within a legitimate use of the plaintiff's publication, within the terms 'fair exercise of a mental operation,' or within the expression of 'deserving the character of an original work.' I think it, therefore, entirely excluded from Lord Eldon's definition, if as a definition Lord Eldon meant it. It appears to me to be a mere borrowing, with alterations and departures merely colorable; and when it is said that the difference of price and other circumstances of difference belonging to it, are such as to render the invasion of no practicable mischief to the plaintiff, the person whose property has been taken, is entitled to judge for himself how far he will consider that abstraction of his property to be prejudicial or not prejudicial. It is a valuable property, and he is entitled to be protected from the unauthorized use of it by another. I do not, however, as at present advised, at all accede to the argument that, whatever may be the relative merit of the two publications, whatever their relative prices, the publication and circulation of the cheaper may not in a pecuniary point of view, at least, if not otherwise, materially prejudice the plaintiff. There are various points of view into which it is unnecessary for me to enter, in which such a case may be put, in which material damage may arise from the subject, considered merely and solely as a question of property, which is the only point of view in which it is my duty or business to consider it."

171. The case of Bradbury v. Hotten1 applies the principle of unlawful abridgment to pictures and engravings. Between the years 1849 and 1867, there appeared, in the London “Punch," nine cartoons, with 1 8 L. R. Exch. 1; 42 L. J. Exch. 28.

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